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The Nuts and Bolts of Hiring People with Criminal Histories

Members may download one copy of our sample forms and templates for your personal use within your organization. Please note that all such forms and policies should be reviewed by your legal counsel for compliance with applicable law, and should be modified to suit your organization’s culture, industry, and practices. Neither members nor non-members may reproduce such samples in any other way (e.g., to republish in a book or use for a commercial purpose) without SHRM’s permission. To request permission for specific items, click on the “reuse permissions” button on the page where you find the item.

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The relatively low unemployment rate is spurring once-reluctant employers to rethink their position on hiring candidates with criminal histories.

According to the Department of Justice, around 650,000 prisoners are released nationwide every year. Advocates say the great majority are eager to work and could take on many jobs that would otherwise go unfilled.

But hiring candidates with criminal histories is a sensitive issue. Matters of privacy and workplace safety come into play, not to mention legal, financial and reputational risks to the employer.

For organizations hiring a former criminal for the first time, or setting up a program to actively recruit candidates with criminal histories, the process can be complicated, in large part because laws vary from state to state on whether it is permissible to disclose a new hire's history to other employees or even to ask candidates if they've ever been convicted in the first place.

Hiring these candidates and helping them succeed involves extra effort by HR. Arte Nathan, who as chief human resources officer of Wynn Resorts in Las Vegas began the company's efforts to hire ex-offenders, believes that "every company needs an advocate" for hiring former prisoners, and those advocates usually reside in HR. "It won't happen on its own," he said. "There's always resistance because of people fearing for their safety."

HR professionals and advocates for former prisoners agree on basic steps employers should take when they begin considering hiring people with criminal histories. Here's a rundown.

Find a Partner

Many experts strongly believe employers "can't do it alone," as Nathan says, when it comes to hiring former prisoners. They say HR's first step should be to identify support organizations and appropriate contacts among local law enforcement, corrections and parole officers before they even broach the topic with management.

"We don't believe in placement alone, but in the partnership with employers," observed Jon D. Ponder, chief executive of Hope for Prisoners, a Las Vegas nonprofit that helps returning prisoners successfully re-enter the workforce and community.

To that end, Hope for Prisoners teaches its participants about "having a winning attitude," time management and soft skills and provides them with ongoing mentoring. It works with former prisoners and their employers for 18 months, and pushes employees "to go above and beyond" what the employer asks them to do. In return, the group asks companies not to fire participants immediately for workplace problems that may arise unless they involve serious problems like violence or theft.

The approach seems to work. According to a report by the University of Nevada—Las Vegas, 64 percent of those who completed Hope for Prisoners' job-training course between January 2014 and June 2015 found stable employment, while only 6 percent were reincarcerated.

Build a Case

Organizations like Ponder's can help HR build its case to management on why hiring former prisoners is not only workable, but can even financially benefit the company. While many advocates like to say hiring ex-offenders is "the right thing to do," chances are that argument alone won't sway a skeptical business owner or management team.

But here's a point that might: Former prisoners often come with salary reimbursements and tax credits, Ponder said. For instance, the U.S. Department of Labor's Work Opportunity Tax Credit can offset an ex-offender's wages by up to $2,400.

In addition, Ponder noted, the criminal justice system itself often imposes "an extra level of accountability" on the employee. For example, their conditions of parole may include arriving at work sober or submitting to random drug testing. Between these workers' attitudes—which tend to be exceptional, according to many HR people who've hired ex-prisoners—their supervision under parole and the government financial incentives involved, Ponder asserts that former prisoners will make money for the business and not be a liability or a disruption.

Work with Your Legal Team

The laws on how former prisoners must be treated during the hiring process vary from location to location, and even from industry to industry.

According to the National Employment Law Project, 28 states and more than 150 cities and counties have adopted "ban-the-box" legislation that prohibits employers from asking about applicants' criminal histories early in the hiring process. At the same time, the Equal Employment Opportunity Commission is "becoming increasingly skeptical" of company policies that prohibit or discourage hiring former prisoners, Nathan said. The reason, employment attorneys explain, is that a disproportionate number of convicted criminals are people of color and so obstacles to getting a job are seen as a discreet form of racism.

But just as HR managers should know the rights of former prisoners, they must understand the legal ramifications involved in hiring them, specifically the idea of "negligent hiring," said Robert Ottinger of the employment-focused Ottinger Law Firm in New York City and San Francisco.

A company could be held liable if a worker was assaulted by a colleague whose background check revealed a history of violence, he said. On the other hand, the company would have a strong defense if the assailant's background included only convictions for embezzlement.

For both legal and practical reasons, then, be sure there's no correlation between the employee's crime and his or her job. Someone who's been convicted of driving under the influence probably isn't the person to fill a position that involves either commercial driving or frequent road trips to visit clients or prospects.

Approach Management

Once you have answers about the legal, financial and other issues involved, you're ready to approach your company's executives. After you've laid out your case, Ponder suggests you encourage the decision-makers to visit the supporting organization so they can ask questions and see how it works for themselves.

Nathan argues that, even before you approach management, you should talk to the hiring manager who'd be involved once you've identified a candidate. "Paint a picture of the person's experience and support system," he said. "They have to be on board [with hiring someone with a criminal history] and make their own decisions." Also, he noted, "HR has more credibility when working with someone in operations."

The Sticky Part

Among the people SHRM Online spoke to, opinions varied on how much information about former prisoners should be shared with the rest of the workforce.

Susan Baranowsky, SHRM-SCP, hired a number of returning prisoners in her previous position as chief administrative officer for a chain of thrift stores in eastern Pennsylvania. She believes a candidate's background should only be shared on a "need-to-know" basis, especially now that personal privacy is a growing concern. "Let the employee choose to share what they want to share," she said.

"HR and the business owner should certainly know the person's background," Ponder said. "But does the warehouse worker need to know their co-worker's history? I don't think so, unless there's a safety concern." As for supervisors, he said, "my question would be, why do they need to know?" For example, you'd certainly want to alert a supervisor if one of their employees was subject to unannounced visits from a parole officer.

On the other hand, Barbi Brown, HR manager and corporate training manager for U.S. Concrete in Washington, D.C., believes it's important for "everyone to be aware" that candidates with criminal histories will be considered for employment. "A lot of times, ex-felons can feel prejudged if everyone knows they have a record," she said. Her approach keeps the workforce informed about hiring practices but does not point out specific individuals with criminal pasts.

That said, chances are your workforce is going to learn about their new colleague's history. "If you think your employees aren't Googling each other, you are a naïve HR person," said Baranowsky. "If an employee does a Google search and complains about a co-worker, ask them if anything's actually happened [at work] or if they're basing their complaint off [information discovered on] the Internet. If it's the Internet, ask them if they've never made a mistake.

"It's something you handle on a case-by-case basis, but HR has to shoulder a level of integrity."

Members may download one copy of our sample forms and templates for your personal use within your organization. Please note that all such forms and policies should be reviewed by your legal counsel for compliance with applicable law, and should be modified to suit your organization’s culture, industry, and practices. Neither members nor non-members may reproduce such samples in any other way (e.g., to republish in a book or use for a commercial purpose) without SHRM’s permission. To request permission for specific items, click on the “reuse permissions” button on the page where you find the item.